Friday, November 24, 2017

First Nations’ Inherent Rights and Fettering of Canadian Sovereignty - Chapter 7




The fourth doctrine under the Law of Nations that has been utilized to defend Crown title in British North America was Prescription. Micheal Akehurst explains that, “prescription is based on effective control over territory…[it] is the acquisition of territory which belonged to another state,…” It is the tenets of this doctrine that L.C. Green employed with the arguments he articulated in The Law of Nations and the New World; that Aboriginal title had effectively been extinguished by the Crown’s “…long exercise of sovereignty with all the concomitant incidents of jurisdiction that go there with…” Referred to as the ‘Settlement Thesis’; the doctrine of Prescription served to provide the paradigm for the conceptualization of Crown sovereignty within the A.D. 1983 decision of the Supreme Court of Canada in Regina vs. Sparrow. Although the negation of Aboriginal rights was placed within the parameters of a “Reasonable Measures” test, the Supreme Court concluded that the exercise of Crown sovereignty over a long duration of time had demonstrated its legal validity, and that Aboriginal rights and entitlements were dependent on their continued recognition by the Canadian state.

There is no contesting the fact that the de facto [in fact] exercise of Crown sovereignty increased in capacity early in the twentieth century and Aboriginal peoples endured the racism and paternalism incorporated within official colonial policies relative to their legal identity within the Dominion of Canada. While this was the political climate and treatment they received at the hands of the colonial government and local settlements within their respective jurisdictional spheres of influence, developments on the international stage were connecting the threads of continuity for their de jure [in law] inherent rights to sovereignty and land title under the Law of Nations. Within a new dynamic of a global juridical community governed by The League of Nations and an emerging body of International Law principles for determining the claims to rights and entitlements between states, Aboriginal sovereignty and land title was to maintain its recognition and would eventually be rejuvenated out of silence within English Law, and by extension Canadian Law, by the ‘First Nations’ Renaissance’ during the second half of the twentieth century.

Between A.D. 1910 and 1918 the Dominion of Canada contributed significantly to the suppression of First Nations’ peoples and Aboriginal cultural identities. Through a series of Indian Act amendments the Parliament of Canada gave power to the Indian Agents to expropriate reserve lands unilaterally, a clearly ultra-virus [outside the law] act of greed that contravened their legal authority under English Law; since Section 91(24) of the British North America Act, 1867 did not entitle them to legislate for, “Indians and lands reserved for Indians” in such a way as to derogate from the legal entitlements embodied in Section 109 of the Act; which effectively provided a Crown recognition of Aboriginal juristical sovereignty , a Crown recognition of an Aboriginal ‘trust’ interest in lands that had been ceded by treaties, and a constitutionally entrenched requirement to negotiate cession of lands possessed by First Nations’ peoples.

Another amendment allowed for the devolution of social services delivery to the jurisdiction of provincial governments, in the hope of abdicating from the Crown’s Guardianship obligations under the Law of Nations and in contravention of the exclusive legislative authority explicitly assigned to the Dominion government’s responsibility by the Crown; the Parliament of Westminster. Last, but not least, was an amendment which enabled the Indian Agents to arbitrarily co-opt any Indian into citizenship if they demonstrated “civilized” qualities; striking their names from the band list of Status Indians and dissolving their Aboriginal identity within Dominion Law. When opposition to these government practices escalated the government simply passed another amendment to the Indian Act in A.D. 1927 that, “…made it illegal to raise funds for the purpose of pressing an aboriginal claim.”

As repressive as the colony became toward Aboriginal peoples as it strived itself to achieve self-government from the British Empire and receive international recognition as an autonomous state at the Paris Peace Conference in A.D. 1919, it had still not acquired the legal stature necessary under English Law or International Law to extinguish de jure Aboriginal sovereignty or land title that had been legally recognized and affirmed since the Royal Proclamation of 1763. By attaining an independent vote in The League of Nations the Dominion government also consented to the legitimacy of the League’s juridical authority to adjudicate on disputed claims to territorial title under International Law. The Canadian government became legally bound to accept and adhere to the decision of the Permanent Court of International Justice in the Wimbledon case of A.D. 1923. In that decision it was held that, “[t]he Court declines to see, in the conclusion of any treaty by which a state undertakes to perform or refrain from performing a particular act [ie: the occupation of specific lands] an abandonment of sovereignty… [T]he right of entering into international engagements is an attribute of state sovereignty.”

The historical relationship between the British Crown and First Nations’ peoples was predicated on a ‘nation-to-nation’ acknowledgement of independent Aboriginal nationhood and juristical sovereignty. The requirement for cessions of land from Aboriginal peoples to the Crown under English Law and the customary practice of utilizing the treaty-making process for acquiring title to territories through the doctrine of Cession under the Law of Nations resulted in the subordinate Crown-in-right-of-Canada inheriting a fettering of its sovereignty from the de jure Aboriginal sovereignty that continued to exist within the lands transferred to the control of the Dominion of Canada by the British Crown. The Government of Canada did not achieve the capacity in law to amend the Constitutional Law of the Dominion until the Patriation of the Constitution was accomplished through the Canada Act of A.D. 1981. At exactly the same time, by Section 35.(1) of the Constitution Act, 1981, the Crown-in-right-of-Canada became obligated through this statute to accept the, “…existing Aboriginal and treaty rights of the Aboriginal people of Canada…” and acknowledge that they were “…hereby recognized and affirmed.” A Full Box of legal rights and entitlements, including Aboriginal shared sovereignty and title in lands granted to the Canadian state as its sovereign territory was the paradoxical consequence of the fruition of the Dominion’s evolution to self-government vis-à-vis the British Crown and English Law.

In Canada – A Political and Social History, Edgar McInnis outlines the de jure powers of the Dominion of Canada in A.D. 1920. “In 1920 Canada was still technically a colony subject to the over-riding authority of the imperial government. The British Parliament could pass laws applicable to the whole empire…and the Canadian constitution was a British statute, which could only be altered by the Parliament of Westminster. Diplomatic control was exercised by the British government on behalf of the whole empire, and the Dominion could neither conclude its own treaties with foreign countries nor establish diplomatic missions abroad.” Although Edgar McInnis also observes that within the de facto relationship between the British Crown and the Dominion these restrictions were made, “…more nominal than actual”, it must be emphasized that we are herein concerned with de jure [in law] entitlements and not de facto [in fact] processes.

The evolution to autonomy from the British Crown was substantially achieved by the Balfour Report that followed the Imperial Conference of A.D. 1926. Recognizing that the Commonwealth, “…defies classification and bears no real resemblance to any other political organization which now exists or has ever yet been tried,” the report proceeds to describe its component parts as, “autonomous communities with the British empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.” Following the Imperial Conference of A.D. 1930 the Parliament of Westminster passed the Statute of Westminster in A.D. 1931, through which, “[t]he Dominions were freed from the provisions of the Colonial Laws Validity Act and might change or repeal any imperial law that was in force within their borders, and no future imperial statute was to apply to the Dominion without its consent.” Even with this enhancement of the de jure rights of the Dominion government however, “the Statute of Westminster…[did not] put an end to all imperial authority…The Parliament of Westminster could still legislate for the whole empire under certain conditions…, and it was specifically laid down that the statute gave no power to Canada to change the British North America Act.”

By the Natural Transfer Agreement Act of A.D. 1931 a transfer of power over natural resources to the provincial governments within the Dominion effectively increased the de facto capacity of provincial legislatures to wrest control over their de jure realms of jurisdictional authority under Section 92 of the British North America Act, 1867 from the Parliament of Canada. At this juncture in the evolution of the Canadian state there are several points to be made to support the assertion that de jure Aboriginal rights maintained continuity in English Law and International Law and were not, nor legally could have been, extinguished by the Parliament of Canada or the provincial legislatures.

The first observation relates to the incorporation of the Statute of Westminster into the body of Constitutional Law that stood in place to articulate the de jure power of the Dominion’s Parliament. Although the Dominion could now, “change or repeal any imperial law that was in force within their borders…,” no domestic statute, common or prerogative law exists that explicitly serves to extinguish the jurisdictional sovereignty, land title and Aboriginal ‘interest’ that had been formally recognized by the Crown in its historical dealings with First Nation’s peoples prior to or subsequent to this Act.

Secondly, the Dominion government was specifically prohibited from changing the British North America Act, 1867, in which the Aboriginal ‘interest’ is acknowledged as an interest, “…other than of the Province in the same…,” by Section 109 of the Act.

Lastly, in A.D. 1928, arbitrator, Max Huber, ruled in the Island of Palmas case that in International Law, “[a] distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of a right, in other words its continued manifestation, shall follow the conditions required by the evolution of law.”

The Dominion of Canada achieved the creation of a right to self-government by the Statute of Westminster in A.D. 1931, but it did not achieve, or attempt to bring about any legal departure from the English Law tradition. The Aboriginal rights to juristical sovereignty, their ‘interest’ in lands ceded to the Crown through treaties, as well as their title to unceded territories within the Dominion remained in full legal force and effect as a consequence of their evolution within both English Law and International Law since the Royal Proclamation of 1763.

At the start of this chapter it was observed that the doctrine of Prescription has been held up as rationalization for vesting de jure sovereignty over territories defined by “British North America” as the exclusive domain of the Canadian state in International Law. As noted, according to L.C. Green, as well as the Supreme Court of Canada in Regina vs. Sparrow, the long exercise of de facto sovereignty over lands inhabited by another state, or states, effectively produces the de jure entitlement. However, the capacity under International Law to acquire validation for territorial acquisitions defended under the doctrine of Prescription is subject to a significant qualification. Michael Akehurst has elaborated in respect to this doctrine that, “[e]ffective control by the acquiring state probably needs to be accompanied by acquiescence on the part of the losing state; protests, or other acts or statements which demonstrate a lack of acquiescence can probably prevent acquisition of title by prescription.”

It was noted earlier that the Nisga’a formally protested the loss of their lands from as early as the A.D. 1880s and right through the period marked by the evolution of Canada’s de facto sovereignty, until at least A.D. 1973 and the decision of the Supreme Court of Canada in the case of Calder et al. vs. Attorney General of British Columbia. Although the Nisga’a lost this decision on a technical point of law, all six judges recognized an Aboriginal title in law, and three of the judges recognized the notion of Aboriginal rights founded on “original occupancy.” The concept found its expression in Canadian Law and served to alter Federal government policy formulations relative to Aboriginal affairs in Canada. The North West Rebellion of A.D. 1885 also demonstrated a lack of acquiescence and protest against the loss of Metis lands and the settlement of the Red River region in Manitoba. Indeed, the historical evolution of the Canadian state in the twentieth and twenty-first centuries is pock-marked by a lack of acquiescence and protests from First Nations’ peoples against the usurpation of Aboriginal rights as they were acknowledged in the spirit of the treaty negotiations with the British Crown during the nineteenth century. A plethora of government committees, commissions and inquiries have been struck between the A. D. 1920s and the present day to address this demonstrated lack of acquiescence from “coast to coast, to coast”.

As devastating as ideas born out of the Italian Renaissance proved to be for First Nations’ peoples in the New World from the fifteenth century through to the middle of the twentieth century, there was also a boon in acknowledgements of their rights in International Law as the global hostilities marked by the Second World War drew to a close and the General Assembly of the United Nations gained esteem as the new arbitrator and adjudicator of international territorial disputes. In a world appalled by the Holocaust suffered by Jewish peoples in Nazi Germany a heightened sense of obligation crystalized on the global stage toward the articulation of Positive Law principles that could serve to embody a framework of Human Rights ideals. Formally pronounced in the A.D. 1948 Universal Declaration of Human Rights, as passed by the General Assembly of the United Nations, International Law recognized the right of all ‘peoples’ to self-government and self-determination. When the Canadian government became signatory to this declaration in A.D. 1956 it accepted an International Law obligation to both support and promote the principles of Human Rights that the Declaration had been designed to serve. Increasingly over the subsequent decades the de jure rights of Aboriginal peoples vis-à-vis English Law and International Law reawakened from their silence to challenge the de facto exercise and de jure entitlement to sovereignty asserted by the Government of Canada.

During World War II Aboriginal peoples again answered the Crown’s call-to-arms and fought to their deaths alongside Canadians of British and French ancestry. These contributions made to the Allied Forces war effort went without formal acknowledgement within Canada until an Indian War Memorial was finally erected by the Government of Canada in A.D. 1996. When Aboriginal war veterans returned to their homes from the battlefields of Europe the racist policies of the Indian Act continued to regulate every aspect of their lives in negative ways. Aboriginal veterans, church groups and supporters protested against such treatment and in A.D. 1951 the Government of Canada was forced by public pressure to repeal those sections of the Act that had formally banned First Nations’ ceremonial practices and the raising of money for political purposes.

Despite these changes to the Indian Act, the rights of Aboriginal peoples in Canada would continue to fight against suppression. Tony Hall, Professor of Native American History, makes the observation that, “[a]s the Department of Indian Affairs [and Northern Development (D.I.A.N.D.)] and the Christian churches withdrew some of the most blatant forms of coercive control over Indian lives, other agencies began asserting new forms of authority over Native people. In the 1960s, for instance, provincial child welfare agencies began asserting tremendous power over Native families by removing young people from their Aboriginal kin and placing them in non-Indian foster homes. This form of forced institutionalization both influenced and mirrored a massive intervention of the Canadian penal system into the Aboriginal domain.”

From the time of Confederation to the dying years of the Trudeau Era government policy in relation to First Nations’ issues resembled what has been referred to as, “Internal Colonialism”. The underlying premise associated with this policy was that Aboriginal peoples should be housed in “reserve” lands until such time as they could be educated in the white mans’ ways. Once the process of education was complete, Aboriginal peoples could then be assimilated into the greater Canadian state. This process was paternalistic in its approach and espoused arguments contending that such policies were designed to protect and shield First Nations’ peoples from the evils of society until such a point in time as they could be deemed capable of dealing with them.

It would seem that time arose in the middle of the century, when the concept of Termination reared its ugly head in the United States between A.D. 1953 and 1960. As a means, “…to extinguish aboriginal and treaty rights and shift jurisdiction and responsibility for Indians and their lands to state governments,” as well as to achieve, “[t]he devolution of municipal powers to Indian communities…” the U.S. government terminated Aboriginal and treaty rights within sixty-one communities and tribal groups during this period. The philosophical underpinnings and political calculations of such a policy influenced the approach employed to address the “Indian problem” north of the U.S. border as well, which became apparent when Pierre Elliott Trudeau released the Government of Canada’s White Paper, A New Indian Policy, in A.D. 1969.

As part of what the Trudeau government called its “Just Society” policy approach, this publication, “…blamed the economic and social stagnation of Indians and their condition of dependency on the existing policy of internal colonialism.” Beginning with this premise, “…the White Paper proposed that the only acceptable solution to the “Indian problem” was to integrate Indians fully and equally into Canadian society.” In order to achieve this end it, “…recommended the repeal of the Indian Act, the removal of special status for Indians, the elimination of the Indian Affairs Department, and the extension of all provincial economic, social, educational, health, and other services to Indians.” It was not, however, capable of achieving termination of Aboriginal rights in law and caused a backlash within First Nations’ societies, as well as within the general population of the state. It proved to be a defining moment in our nation’s history for the defeat of any notion that the doctrine of Prescription could serve as validation for Canada’s acquisition of territorial title in British North America under International Law. Rather than dissolving those rights, it served to reawaken and give renewed voice to the legal reality that First Nations’ peoples in Canada do in fact possess de jure rights to juristical sovereignty, an Aboriginal ‘interest’ in lands ceded to the Crown by treaties, and a de jure title to unceded territory within the boundaries of the Canadian state in English Law that have never been repealed and stand today as, “…hereby recognized and affirmed” through the Constitution Act, 1981.

Reaction to this new government position in respect to Aboriginal policy was swift and hostile, as First Nations’ leaders rightly perceived the new policy as one of abandonment. The transfer of responsibility over Aboriginal programs from the Federal to provincial governments was deemed to be a devaluation of the rights of indigenous peoples, and was considered by some as a process of genocide. Political opposition and interest group pressure eventually brought about an official abandonment of this policy by the Trudeau government in A.D. 1971, but its proposals for dealing with First Nations’ issues added fuel to the flames of distrust burning within the relationship between the state and its Aboriginal peoples. Questions remained as to the true intentions of the Canadian Crown in relation to its fiduciary responsibility for its First Nations’ peoples. While the White Paper failed to achieve its apparent goals of, “assimilation through integration” and “termination” of Aboriginal de jure rights and entitlements, it did serve as a catalyst for change. Most certainly unintended by the Government of Canada, the White Paper instead facilitated an expansion of inter-First Nations' political organization and gave rise to a plethora of new voices for articulating hitherto suppressed de jure Aboriginal rights to self-government and self-determination.

As early as A.D. 1970 the Indian Brotherhood of the Northwest Territories (the Dene Nation) denied that their peoples had surrendered either sovereignty or land title within the territories their people had lived on since time immemorial to the Crown. The National Indian Brotherhood (later changing its name to the Assembly of First Nations) was also formed during this period to represent Status Indian interests; the Indian Tapirisat of Canada (ITC) was formed to represent the rights of Yukon Indians; and the Native Council of Canada organized to be a voice for Non-Status Indians and urban Indian populations across Canada. In A.D. 1973 the Supreme Court of Canada decision in Calder et al. vs. Attorney General of British Columbia acknowledged formally, for the first time in Canadian Law, the concept of an underlying Aboriginal title in lands that had been transferred by the British Crown to the Crown-in-right-of-Canada, and three of the six judges concluded that this title was based on original occupancy. Although not a conclusive recognition of inherent Aboriginal rights, this decision sent red flags up in the offices of the Department of Justice and within D.I.A.N.D., which contributed to the shift in government policy relative to Aboriginal land claims.

In the A.D. 1890s the U.S. government broke with the historical practice of negotiating treaties with First Nations’ societies and, with an upper hand achieved through decades of oppression and genocide, changed the terminology of such inter-societal accords to “Agreements”; as a means to diminish their standing under International Law and cloak the rights and entitlements arrived at with the subordinate symbolic stature of mere domestic law intra-national conciliations. The Government of Canada, never averse to borrowing ideas and concepts from our southern neighbours to deal with the “Indian problem”, made the same shift in terminology during the mid-1970s and entered into negotiations with the Cree-Naskapi of Northern Quebec for land title over their ancestral territories. With the objective of building dams to produce a market for hydro-electric energy, the Federal and Quebec governments reached a tentative accord on terms with the Cree-Naskapi and incorporated them with a “comprehensive land claims settlement” that is referred to as the James Bay & Northern Quebec Agreement of A.D. 1975.

Also occurring in A.D. 1973, a dispute over the terms of Treaty 11 resulted in hearings in the Northwest Territories before Justice William Morrow. After hearing testimony from Aboriginal elders, some of whom had been present during the signing of the treaty, Justice Morrow concluded that the treaties had been, “…misrepresented and inadequately explained.” Again in A.D. 1975 dispute arose in the North over construction of the Mackenzie Valley Pipeline. Eminent jurist, Justice Thomas Berger, was appointed to conduct an official Inquiry. With the publication of his Inquiry report following extensive hearings throughout the North, Justice Berger recommended that construction of the pipeline be halted until such time as Aboriginal land claims had been concluded. In later years he was forced off the bench of the Supreme Court of British Columbia for speaking out publicly against the deplorable treatment that Aboriginal peoples have been subjected to by the Canadian Crown. Thomas Berger recorded and published his learned observations in his book, The Long and Terrible Shadow, which served to heighten knowledge across the country about the Canadian government’s treatment of First Nations’ peoples. Not unlike Las Casas in the early sixteenth century, Justice Berger’s castigation of the Crown effectively exposed Canada’s abhorrent ownership of its own Leyenda Negra.

All of the above noted examples provide evidence for a lack of acquiescence and ample evidence of protests against Crown claims to sovereignty and land title. They serve to discount the Settlement Thesis and the validation of acquisition of territorial title based on the doctrine of Prescription in International Law. These historical references make it evident that Prescription is incapable of justifying sovereignty and territorial title in Canada’s assumed territories. By extension it must also be acknowledged that the Supreme Court of Canada erred in concluding that de jure Aboriginal rights are contingent upon the benevolence of the Canadian state in their A.D. 1983 decision rendered in the case of Regina vs. Sparrow.

Based on the research I have completed over the past three decades into First Nations-Crown relations in the New World during the past five centuries, it is my conclusion that the only validation for the de jure acquisition of territorial Crown title that can be defended under the Law of Nations or International Law is the doctrine of Cession. Since it has been observed that the very act of entering into treaties is an attribute of state sovereignty, it must be concluded that First Nations’ peoples in the New World possessed that attribute before entering into treaties with the Crown. Since an incident of sovereignty cannot be extinguished without explicit articulation of that intent, a lack of pronouncements specifying that extinguishment leaves the de jure right to sovereignty undisturbed.

Despite the pompous declaration of sovereignty in the Royal Proclamation of 1763, there was no explicit pronouncement that professed to terminate First Nations’ sovereignty. In fact, a decade later the Judicial Committee of the Privy Council acknowledged and formally established juristical sovereignty as a right at common law in the English Law tradition, even after numerous treaties had been concluded with the Mohegan Indians. The clause found in all post-Confederation treaties, which provides that, “[the said] Indians…cede, release, surrender and yield up to the Government of the Dominion of Canada, for Her Majesty the Queen, and Her successors forever, all their rights, titles and privileges whatsoever, to lands included…”, did not explicitly declare that their “sovereignty” was extinguished. While legal experts representing the Crown could have explicitly used that term, they did not, and the common law of their own legal tradition had already acknowledged an Aboriginal right to juristical sovereignty, even after treaties were signed, a century earlier.

There are some within government circles who like to argue that the language of the clause in the post-Confederation treaties represents a clear intent to extinguish Aboriginal sovereignty, but I caution that to walk that path opens a Pandora’s Box; which includes such speculations as whether the spirit of the agreements was understood by all signatories to the treaties in the same way. There is an abundance of evidence available to support a contrary conclusion. For years the Crown has argued that it is the “letter of the law” that must serve to guide determinations of what was achieved by the treaties. By that standard, since none of those letters explicitly spelled out, “Aboriginal sovereignty is extinguished”, the Aboriginal de jure right in lands inhabited by First Nations’ peoples and their ancestors since time immemorial remains in full force and effect within both English Law and International Law. As such, it is an inherent right possessed by Aboriginal peoples throughout Canada.

The process of treaty-making failed to disturb the juristical sovereignty in lands ceded to the title of the Crown and also served to create a constitutionally entrenched Aboriginal ‘interest’ in those lands vis-à-vis English Law. In lands that have yet to be ceded to the Crown both juristical sovereignty and de jure land title belongs to the First Nations’ peoples whose ancestors have inhabited said lands since time immemorial. Since juristical sovereignty is an Aboriginal right in both ceded and unceded territories assumed to be within the sovereign domain of the Crown-in-right-of-Canada, it must be concluded that said Crown sovereignty is fettered and that the Canadian state is in actuality legally constituted on the framework of a condominium of sovereign interests and legal entitlements.

This conclusion could serve to conjure up horrific implications for the future of the Canadian state in many minds. Not unlike the unsettling emotions I experienced not so many years ago while watching C.B.C. television coverage of the Quebec Referendum on separation. Fear of the fabric of our nation being torn apart by such a finding helps to explain, at least in part, why I stood frozen with my toes gripped tightly to the end of the diving board for so long. It must be acknowledged today, however, that our nation’s fabric is already very seriously frayed. Unless and until revolutionary approaches are considered and acted upon, the currents of change will be no more forgiving on the Canadian state than they have proven themselves to be on a diversity of political communities that have waxed and waned throughout the history of civilization.

I believe it accurate to say that the political climate in Canada today represents a crisis of identity analogous to the experience of some people in the life-stage of adolescence. That said it is important to recall the observation made by Theodore E. Steinway, who once noted that, “[in] one of our concert pianos, 243 taut strings exert a pull of 40,000 pound on an iron frame. It is proof that out of great tension may come great harmony.” The final words of wisdom are reserved to Michael Asch and Patrick Macklem; “…trauma often permits the exploration of previously unexplored assumptions about the values by which we live our lives and, as a result, the possibility of growth and transformation.”

Henry David Thoreau is quoted as having once expressed the view that, “[i]t takes two to speak the truth – one to speak and another to hear.” It is my hope that through the course of reflection on the evidence herein presented, Canadians will together mature into an appreciation for and acceptance of the truth as I have come to know it.

The Middle Age of Effete Interactions - Conflict, Accommodations, Repression and Devastation - Chapter 6




The doctrines of Discovery and Conquest within the Law of Nations had effectively seen their rationalizations denounced by the other European states who were participatory in the formulation of ‘customary rules' for the acquisition of territories in the New World. Accordingly, it became necessary to consider alternative principles upon which to defend territorial claims to land title and sovereignty vis-à-vis the other Crowns in Europe. The problem was that the British required the cooperation and assistance of the First Nations’ peoples to maintain the fur trade, and their services as allies against the competing interests of the French and the United States of America was also essential. That being the political reality of the age, the British Crown elected to pursue the “surrender” of tracts of land from Aboriginal peoples through a process of treaties and the incorporation of the doctrine of ‘Cession’ as the foundation for their claims to territorial sovereignty in British North America under the Law of Nations.

Michael Akehurst has explained that, “Cession is the transfer of territory, usually by treaty, from one state to another.” Maureen Davies adds to this definition by noting that, “[t]he state is one of the fundamental units in international law. A sovereign state is an independent state. For the purpose of international considerations, its independence is de jure [by and in law] not de facto [as a matter of fact]. In other words, a sovereign state may exercise its power to create for itself a voluntary state of dependence [ie: a ‘Protectorate’ relationship with another state] through, for example, the exercise of its treaty-making powers…[s]ince a treaty is a consensual alteration of the rights and status that existed in all states under International Law, failure to delegate an incident of sovereignty leaves it undisturbed”. [Bold added]

There are two points to be made before proceeding further. The first was articulated by Chief Justice John Marshall in the decision he rendered for the United States Supreme Court in A.D. 1832. In Worcester v. Georgia he made the astute observation that, “[t]he words “treaty” and “nation” are words of our own [English] language, selected in our diplomatic and legislative proceedings, by ourselves, having a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.” The second point to be made is that according to both The Concise Oxford Dictionary of Current English and Webster’s College Dictionary, the word ‘cede’ (from which the word ‘cession’ is derived) has a dual interpretation. While on one hand the dictionaries provide a definition which stipulates synonymy with the word “surrender” or “give up”, both dictionaries also explicitly define the word as a “grant”.

The semantics of this duality in meaning cannot be over-emphasized in relation to cessions of land from Aboriginal peoples to the British Crown through treaties. Throughout the available literature on the respective understandings between First Nations’ peoples and the British Crown with regard to the treaty-making process the recurrent message gleaned is that both parties had separate and distinct understandings of what was being agreed upon. During the second half of the twentieth century and into the twenty-first legal scholars and politicians representing the Crown’s interest have endeavoured to conclude that these treaties were to be considered as “surrenders” of land title and sovereignty. Aboriginal peoples and their supporters assert that what these treaties symbolized was a ‘nation-to-nation’ agreement to share the land with the white settlers in exchange for specific benefits, but certainly not an extinguishment of their title to these lands.

The Treaties of Canada with the Indians of Manitoba and the North-West Territories including The Negotiations on which they were based, written by the British appointed Treaty Commissioner, The Hon. Alexander Morris P.C., makes it clear that the purpose of the treaties was to accomplish the objective, “of obtaining the alliance and promoting the welfare of the Indian…by entering into treaties of alliance with them,…”. As Maureen Davies has concluded, “it would be neither just nor constitutional for treaties establishing free, amicable associations to be construed later as abject surrenders, for to do so implies that the Crown wilfully deceived its allies. Nothing could be less compatible with the respect owing the Crown in its sovereign actions.”

A series of historical references from the second half of the eighteenth century and through until the latter part of the nineteenth century provides evidence to support the hypothesis that Aboriginal sovereignty and land title maintained a continuity of formal recognition in English Law, as well as within the Law of Nations throughout this period. It will also serve to demonstrate that the colonial governments in North America were not legally constituted as possessing attributes of sovereignty themselves and consequently possessed no legal authority or capacity in English Law or within the Law of Nations which would enable them to extinguish Aboriginal sovereign title within the parameters of either legal tradition through domestic legislative enactments or treaties.
In the British legal system it is possible to discern three direct sources of law which serve collectively to establish legal rights, entitlements and obligations within the English Law tradition:

The first source of law is royal prerogative, which provides the foundation for the authority of the Royal Proclamation of 1763. Robert B. Stewart has observed in his book, Treaty Relations of the British Commonwealth of Nations that prerogative in English Law means, “the powers, privileges and immunities peculiar to the King.” Prerogative powers of the King are the powers original and inherent in the Kingship, as distinct from powers conferred on him by statute. They are, “the ancient customary power of the Crown…The source of the King’s executive power in the realm of treaty making is still the ancient common-law prerogative, though the treaties themselves would be constituted under the Law of Nations and only later ratified by the domestic law of the state.”

The second source of law is referred to as the common law and is the body of precedents that have been established as a consequence of common practices (ie: customs) of the British Crown or court rulings from its judicial institutions which serve to define legal rights, obligations, etc., based on a presumption of the application of legal principles under similar circumstances.

The third source of law is the body of statute law, which includes constitutional enactments and subordinate legislation passed through the Parliament of Great Britain or one of the legislative institutions within the regions of its realm (ie: the legislatures of colonies or provinces under its domain). Within the British legal system there exists the principle of the supremacy of the Parliament of Great Britain, and the accepted doctrine is that legislative and judicial institutions created by the Parliament at Westminster are subordinate to and bound by the legal pronouncements of this Parliament and its court of highest instance, the Judicial Committee of the Privy Council.

Under English Law the Royal Proclamation of 1763 was established by royal prerogative “…for the purpose of maintaining peace, law, and order on the frontier…”, and to censure colonial government representatives and British subjects in the New World from “molesting” or “disturbing” the rights of First Nations’ peoples. King George III, evidently concerned about the implications of uprisings within the colonies and unceded territories on his mercantile enterprises, formally declared in English Law the right of Aboriginal peoples to live on their lands and be left to their own devices within territories that had not been ceded to the British Crown. This statutory declaration raised the ire of colonists in the Thirteen Colonies of the Americas and precipitated their Declaration of Independence from Britain a decade later, in A.D. 1776. These colonies achieved recognition of their independence through the Treaty of Versailles in A.D. 1783, but for the loyalist colonies within British North America that did not succeed the Royal Proclamation of 1763 remained unextinguished and effectively denied their colonial governments any powers of a sovereign state or corresponding independent state status under the Law of Nations.

Quite to the contrary in fact, the British Crown had established a legal precedent in A.D. 1773 in the case of the Mohegan Indians vs. Connecticut which recognized and affirmed that the Mohegan Indians were ‘juristically sovereign’ within their own territories. This common law entitlement to juristic sovereignty in English Law ratified their status under the Law of Nations as ‘Protectorates’ who signed numerous treaties with the Crown that remain in effect and have not been superseded in law at any point since their articulation nearly 250 years ago. The constitutional capacity of colonial governments to unilaterally extinguish Aboriginal sovereignty and land title was conclusively rejected by the Parliament of Great Britain in A.D. 1835 when, in the case of Cameron vs. Kyte, the Judicial Committee of the Privy Council confirmed that, “…colonial governments were not sovereign and accordingly had no inherent power to enact laws in derogation of aboriginal rights.” With the evolution of the ‘Dominion of Canada’ the direct sources of English Law, which includes these two common law precedents, continued in their authority to govern the legal rights, entitlements and obligations of our nation. The inherent rights of Aboriginal sovereignty and land title have since been constitutionally entrenched through the provisions of Section 35.(1) of the Constitution Act, 1981 as an “…existing aboriginal…right” possessed by First Nations’ peoples within the Canadian state.

Early in the nineteenth century eastern parts of North America became a battlefield to the legendary War of 1812, when “…the British kept a comin’…” Throughout the course of that war Aboriginal peoples served as allied nations on the side of the ‘Red Coats’ against the ‘Long Knives’. In particular, the League of the Iroquois Confederacy answered the call-to-arms, and provided valuable service to the British cause. When the British Crown and the United States of America agreed to peace terms in the Treaty of Ghent in A.D. 1814 the independent nationhood status of Aboriginal allies was formally recognized under the terms of this international peace accord and, as such, provides evidence attesting to Crown recognition of Aboriginal title under the Law of Nations.

According to Article Nine of the Treaty, “…all lands belonging to Indians allied with Britain must be returned to their Indian owners.” If the political realities of the period had not required recognition of the Aboriginal land title as distinct from the assumed Crown title then there would have been no need for the inclusion of this Article within the Treaty. It’s very existence and inclusion in clear language and certain terms provides validity for the assertion that First Nations’ peoples possessed legal entitlements that were recognized within a nationhood status under the Law of Nations well after the point in history that the Royal Proclamation of 1763 came into legal effect in English Law.

After ‘…the British kept a runnin’…’ and the hostilities between the Crown and its former colonies in America subsided several circumstances conspired to erode the “Middle Ground” between immigrants from the Old World and First Nations’ societies in the New World. First there was a dramatic rise in population within Upper Canada. From A.D. 1791 to A.D. 1812 the population increased by 500%, from 14,000 to 75,000, with the vast majority of new arrivals being Loyalists who relocated from the United States. Also, before the middle of the century 1,000,000 British immigrants and 450,000 Irish immigrants would journey to the New World.

Second, although Aboriginal peoples would remain essential to the fur trade up to the present day, the end of warfare between the colonies increased the capacity of European traders to dictate the terms of trade and gradually eroded the bargaining leverage of Aboriginal peoples in the commercial enterprises.

Third, the termination of imperial rivalries diminished the military necessity and utility of First Nations’ societies. Over the subsequent decades the evolution toward ‘responsible government’ within the colonies facilitated a gradual transfer of control over policies relative to Aboriginal peoples from the military apparatus to the realm of the civil administration. With this transition a corresponding reduction of amiable cooperation ensued and the partnership between Europeans and First Nations’ peoples drew to a close.

Lastly, and coincident with this transformation of relationships, there emerged in the early nineteenth century a variety of anthropological theories which promoted the view that it was possible to "“improve” primitive people through education in Christian principles and civilized behaviour". This served to usher in the Eurocentric attitudes of superiority and paternalism that lay dormant during the eighteenth century while the imperial commercial enterprises necessitated respect and cooperation between Old and New World peoples. Much like the historical point at which first contact in the Americas was established, European settlers were kept busy finding new ways to rationalize their desires against the legally recognized entitlements of First Nations’ peoples.

Despite these changes in the relative power of Aboriginal peoples vis-à-vis the colonial administrations in the north-eastern regions in North America, it is incorrect to conclude that by extension their sovereignty and legal rights under English Law or the Law of Nations became extinguished. These rights under both domestic and international bodies of law survived in spite of the change in attitudes toward Aboriginal peoples within the colonies and continue to the present day.

It is also important to caution the reader from broad brush strokes which would assume that the relationship between colonists and Aboriginal peoples in the north-eastern regions of North America had any corresponding capacity for recognition or enforcement on the north-western Plains, in the Interior Plateau region of British Columbia, or on the North-West Coast. In the early decades of the nineteenth century explorers and traders had only just started penetrating the vast territories of the North West Territories and Rupert’s Land. As John Ewers has observed, “the Blackfoot tribes were at the height of their power in the middle of the 19th century…for…forty-seven years after the Lewis and Clark expedition [A.D. 1804-06], no official government exploring party entered the Blackfoot country.”

It is pure fancy that the Crown could even pretend to be exercising supreme rule over the indigenous peoples who continued to live their lives within political communities that remained largely unchanged and unaffected by the war between colonists far to the east. It is all the more preposterous to give credence to the pompous declaration of sovereignty over these lands from a monarch who came to demonstrate a questionable grasp on sanity, and who lived across an Atlantic Ocean that Aboriginal peoples in the north-western regions of North America had never even come close to seeing this side of.

To help drive home the absurdity of pretending to possess supreme rule at the beginning of the nineteenth century over a region as vast as Canada, consider that the distance between Calgary and Toronto is fully 3,200 kilometers and that between Calgary and Halifax it is 4,800 kilometers. Presuming a good horse, the fastest mode of transportation available to cross the continent during that period, might be able to travel 80 kilometers per day (and that’s presuming a straight and unbroken path with no natural or human obstacles to overcome) it would still take a minimum of 40 to 60 days, respectively, to traverse such distances. Indeed, it would not be until A.D. 1874 that an official delegation of armed enforcers representing the Crown, the North-West Mounted Police, was able to make their way into the heart of the north-western Plains. Even at that point their numbers were in the hundreds, while the Blackfoot Confederacy still had a population in the thousands.

An important trilogy of Supreme Court decisions were rendered in the United States by Chief Justice John Marshall in A.D. 1831-32 that provide insight into perceptions of First Nations’ legal rights and relationships a third of the way through the nineteenth century. While not juridically binding on the British Crown, their relevance derives from the understanding they articulate in respect to the paradigm that was operative for defining Aboriginal legal entitlements during that age. Since the British and United States models of jurisprudence share a common normative base it is not an unrealistic presumption to conclude that their approach toward inter-societal agreements with First Nations’ peoples would have been fundamentally the same.

In Worcester v. Georgia, Marshall C.J. held that, “the Indian nations have always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil”. With reference to the Royal Proclamation of 1763 it was his view that Aboriginal sovereignty had not been extinguished. He accept this document, “…as asserting a title against Europeans only in reserving the right to acquire land from native people solely in the Crown…It merely bound the nation to the British Crown, as a dependent ally, claiming the protection of a powerful friend and neighbour, and receiving the advantages of that protection, without involving a surrender of their national character.” It was Marshall C.J.’s conclusion that, “the settled doctrine of the law of nations is, that a weaker power does not surrender its independence – its right to self-government – by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state.”

Since A.D. 1700 the British Crown and its subordinate ‘Dominion’ government in Canada have completed nearly 500 treaties with Aboriginal peoples. They utilized the instruments and terminology of international agreements under the Law of Nations to negotiate these treaties with First Nations’ societies and it would be reprehensible to now construe those inter-societal accords as instruments of domestic law. In A.D. 1928 the United Nations ruled in the Island of Palmas case that, “sovereignty over territory means “the right to exercise therein, to the exclusion of any other state, the functions of a state”, but elaborated on this principle by noting that said sovereignty, “…is not necessarily unlimited. Other states may, by treaty or local custom, acquire minor rights over the territory…”

Aboriginal sovereignty was not extinguished by the expression of Crown sovereignty in the Royal Proclamation of 1763. Rather, King George III’s prerogative created a condominium of sovereign titles under the Law of Nations within the territories of British North America that had been ceded or would come to be ceded through treaties during the nineteenth century. What the Royal Proclamation of 1763 did effectively accomplished was not only formal legal recognition of an ‘Aboriginal interest’ in the lands they had lived on since time immemorial vis-à-vis English Law, but also served to fetter Crown sovereignty in the assumed territories of British North America that were ceded to the British Crown vis-à-vis the Law of Nations. Further, in lands that have yet to be ceded to the Crown, First Nations’ sovereign title in those lands has been explicitly articulated within the common law and has been implicitly acknowledged by the Crown through its customary practice of dealing with Aboriginal allies through the process of treaty-making under the Law of Nations.

In order for the Right Honorable Pierre Elliott Trudeau, then Prime Minister of Canada, to achieve his ambitions relative to the Patriation of the Canadian Constitution in A.D. 1981 it was necessary to first go to the Parliament of Great Britain and have the Canada Act passed by imperial statute. It is quite instructive of the ‘European interests vs. Aboriginal rights’ dichotomy influencing the relationship between Old and New World peoples since the dawn of first contact that fully three-quarters of the debate in the British Parliament leading up to the Patriation centered on the rights of Aboriginal peoples.

This was not the first time that Parliamentarians debated intensely over the Crown’s obligations to its Aboriginal allies. In fact, in the period leading up to the Act of Union that established the Province of Canada in A.D. 1840 the British House of Commons was also absorbed in a similar debate. Richard Barlett has noted, “…the first recommendation of the 1837 Select Committee on Aborigines (British Settlements) of the British House of Commons was that whatever the legislative system of a colony, as far as possible the Indians be withdrawn from its control. The soundness of this recommendation was recognized by succeeding secretaries of state for the colonies; in the A.D. 1839 Report of the Committee of the Executive Council of Lower Canada, in the A.D. 1844 Report on the Affairs of the Indians in Canada, and in the A.D. 1858 Report of the Special Commissioners to Investigate Indian Affairs in Canada. In spite of this, control over Indian affairs devolved upon local governments as responsible government developed and as the imperial government restricted expenditures in colonial matters”.

With the devolution of “control” over Indian affairs to the colonial government at this point in history it is important to draw attention to the significant distinction between ‘control in fact vs. authority in law’. The word “control”, as defined in Webster’s College Dictionary, means, “to exercise restraint or direction over; dominate, regulate or command.” In contrast, the word “authority” means, “the power to determine, adjudicate, or otherwise settle issues; the right to control, command or determine” [italics and underline added]. Herein lays the seed for the misinterpretations and erroneous conclusions that have been drawn relative to Aboriginal rights to sovereignty and land title. While the colonial government achieved a de facto (in fact) capacity to gradually increase their rule and domination over Aboriginal peoples, they did not then, and have not since, achieved a de jure (in law) entitlement to extinguish or dissolve First Nations’ rights to sovereignty and self-government under either English Law or the Law of Nations. There were no pronouncements or formal legislative instruments passed through the Parliament of Great Britain that served to transfer the ‘Protectorate’ relationship between First Nations’ peoples and the Crown to its colonial administration in the Province of Canada; the new province was still considered subordinate to the Crown and lacked any sovereign identity or capacity for action under the Law of Nations.

Undoubtedly the colonists lust for land and dominion in the middle of the nineteenth century was made possible by the contributions of both the visitation of natural catastrophes on Aboriginal communities and the unscrupulous and unethical business practice of filling Indians with gifts of Rum (referred to as “Spirit Water”) in exchange for furs and pemmican. In A.D. 1837 fully two-thirds of the Blackfoot, Assiniboine, Cree and Ojibwa of the Plains were lost to a smallpox epidemic that ravaged their communities. In A.D. 1862 approximately 20,000 lives were lost in a smallpox epidemic that wiped out fully one-third of the Aboriginal peoples living within the regions of British Columbia. In A.D. 1869 another smallpox epidemic on the north-western Plains wiped out at least half of the Blackfoot Confederacy; those who had survived the earlier epidemic 32 years prior. Intentionally or tragically, the smallpox virus brought from the Old World to the New World decimated First Nations’ peoples.

The significant reduction in the Aboriginal population on the prairies and in the interior of British Columbia made settlement in the north-western regions of North America possible and enabled the colonists to suppress First Nations’ societies that had become increasingly devastated and demoralized by the loss of so many lives to disease. With a spiritual tradition since time immemorial, Aboriginal peoples succumbed to the ruinous consequences of disillusionment. Perhaps worse still, their demise by illness only seemed to empower Christian settlers toward the assumption that it was God’s wrath being cast upon the heathen. Such attitudes helped feed the premise that Aboriginal peoples were a “primitive” people who needed to be educated in Christian and civilized ways, and should therefore be kept separate and removed from mainstream society and treated as “wards” or “children” who required tutelage, for their own protection, before they could be integrated and assimilated into the settlement communities.

The de facto relationship between Aboriginal peoples and colonists as it were, did not serve to negate or disrupt First Nations de jure sovereign and land title rights. The Crown continued, as it had done since the beginning of the eighteenth century, to negotiate with Aboriginal peoples for the Cession of their territories under the Law of Nations process of ‘nation-to-nation’ treaty-making. When the ‘Dominion of Canada’ was established through the British North America Act of 1867 (now referred to as the Constitution Act, 1867) in order to produce the jurisdictional “…Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof: and for Purposes connected therewith” absolutely no mention was made of a reduction or extinguishment of the sovereignty and land title rights of the approximately 220,000 Indian peoples living within the territories of British North America at the time. There is only one reference in the entire Act to Aboriginal peoples, in which at Section 91(24) the Act provides that “…the exclusive Legislative Authority of the Parliament of Canada extends to…Indians, and Lands reserved for the Indians.”

Michael Asch and Patrick Macklem have observed, “…nowhere in the Constitution Act, 1867, does it actually state that the Canadian state enjoys sovereignty over its indigenous population…[D]espite initial appearances to the contrary, the justification for the assertion of Canadian sovereignty, an assertion which underpins the coherence of the contingent theory of Aboriginal rights, cannot be located in the text of the Constitution Act, 1867.” Peter W. Hogg, Constitutional Law expert and author of Constitutional Law of Canada, has added to an understanding of just exactly what was achieved by the British North America Act, 1867 (B.N.A. Act) by noting that, “…the B.N.A. Act did not mark any break with the colonial past. Independence from the United Kingdom was not desired or even contemplated for the future. The new Dominion, although enjoying a considerable degree of self-government, remained a British colony…In fact, of course, after 1867 there was an evolution to full independence, but it was a gradual process continuing well into the twentieth century.”

At this juncture in our nation’s history there was no departure in law from treating Aboriginal peoples as distinct nations and the requirement of the Royal Proclamation of 1763, along with the common law entitlements and restrictions embodied with the case law from the decisions of Mohegan Indians vs. Connecticut (A.D. 1773) and Cameron vs. Kyte (A.D. 1835) remained in effect to provide continuity for the de jure right of Aboriginal sovereignty. Section 109 of the British North America Act, 1867 also served to maintain the status quo relationship in law between the Crown and First Nations’ peoples, effectively acknowledging their “interest” in the land as one “…other than of the Province in the same.” The newly acquired “…Legislative Authority of the Parliament of Canada…” embodied within Section 91(24) of the Act did not free the Dominion from its obligation in law to honour and adhere to those “nation-to-nation” agreements that had created an Aboriginal “interest” in the land under English Law, and the executive powers bestowed upon the Dominion government with respect to “…all lands, mines, minerals and royalties…” were such as to make the Crown “…subject to any trusts existing in respect thereof…”.

Early in the life of the colony’s Parliament these obligations continued to be articulated within the statute law of the Dominion. With the formulation of the new Dominion came new legislation within the colony that acknowledged the prior obligations of the Crown. In A.D. 1868 An Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordinance Lands served to “…ban throughout all of Canada the disposition of Indian reserves without a “surrender” by the First Nations’ peoples living on the reserve to the Crown. The requirement of a surrender conferred protection from the incursions of local interests, as local governments were unable to override it.” When in A.D. 1869 the Hudson’s Bay Company was forced to turn over its jurisdictional title to lands of the North West Territories and Rupert’s Land vis-à-vis English Law to the Dominion of Canada, a condition of the transfer again required that the Dominion “treat” with Aboriginal peoples for the Cession of their lands.

From A.D. 1871 to 1921 the Dominion of Canada mobilized to develop a western hinterland that could serve to enrich the eastern colonies. A condition of British Columbia’s admission into Confederation in A.D. 1871 was a Federal commitment to establish a trans-continental railroad that would serve to connect the North West Coast colonies to Upper Canada. The threat of American expansionism also motivated Sir John A. MacDonald to seek ways in which to settle European farmers across the territories claimed by Britain’s empire. It would prove to be an arduous process that would be confronted and opposed by First Nations’ peoples across Turtle Island. Military conquest was not an achievable political agenda, despite instances of harsh treatment and brutal acts of suppression, because Aboriginal peoples possessed a de jure title that had been recognized through the history of the English Law tradition and there existed an obligation under the Royal Proclamation of 1763 to “treat” with First Nations’ peoples. It was also pragmatically impossible for the Crown to exert sovereignty – that is, supreme rule – over a plethora of nations they encountered when they sent plenipotentiaries across the land to negotiate the eleven “Numbered Treaties”; covering an area from Quebec’s border with Ontario to the North West Coast of the continent.

Fly from Toronto to Vancouver some time, get a window seat, and look out upon the mass of land and water that lies far below you; a territorial region that makes up a state which governs fully 7% of the world’s arable land. Then, take a walk down 1885 Street or within the palisades of Fort Edmonton Park. If after those two experiences you still feel it possible for sovereignty to be achieved during that age, you have a far more vivid imagination than mine, and I fear a far less realistic one as well. Had there not been a serious threat of First Nations’ opposition to Crown aspirations there would have been no conditions producing the necessity to sit down in tipis and around campfires to negotiate the transfer of gifts and guarantees, uniforms, medals, farm animals, agriculture implements, medical and education services, and a commitment to share the land. There were distinct benefits in accepting terms of treaty with the British Crown during that period. The demise of the Buffalo herds caused starvation on the Plains as well as an obsessive desire for European trade goods and ultimately influenced some First Nations’ peoples to accept “surrender” of some of their territories in exchange for an agreement with Crown representatives that they would receive the protection and support of the great white Mother, Her Majesty the Queen.

Despite the devastation within Aboriginal communities caused by disease and incessant warfare, there still existed a choice to acknowledge and participate in a process of inter-societal negotiations, to seek common ground which could serve to produce mutually beneficial outcomes for separate and independent political communities. Aboriginal peoples agreed to live within “homelands” and to allow settlers onto lands that they had formally controlled. In exchange, British plenipotentiaries promised to serve the “welfare” of their peoples and the international doctrine of Guardianship was adopted and utilized to usher in an age of shared sovereignty within English Law and the Law of Nations over the regions of the North West Territories and Rupert’s Land through the process of signing the Numbered Treaties.

It is at this point in history, when the Dominion government passed into the laws of the colony the Indian Act of 1876, that we can rightly place what Bruce Clark identifies as the “…gap between the natives’ right at law and their treatment in practice in the colonies.” The Dominion Crown had no de jure [in law] authority to interfere with First Nations’ rights to sovereignty and land titles, but as the bureaucracy responsible for acknowledging and serving those rights they did develop the de facto [in fact] regulatory instruments to water those rights down to a point of virtual impotence.

This Act assumed the administration of Indians as colonized people and colonial policies were achieved through the use of this legislative statute. From its inception in A.D. 1876 and through several amendments between then and A.D. 1951 the Act regulated the displacement of traditional Indian leadership; introduced the community governance of elected band councils and a corresponding “atomization” of reserve societies; immobilized Indian peoples on reserve “homelands” through a policy of a “Pass” system; banished specific ceremonial and spiritual practices; forced enfranchisement to meet the objectives of arbitrary extinguishment of Aboriginal rights and to serve the aims of policies of “assimilation through integration”; suppressed fundraising initiatives by constituting the act of collecting revenue in pursuit of Aboriginal land claims or other political purposes as illegal acts; and unilaterally expropriated some First Nations’ lands recognized by Treaty under the Law of Nations to ranchers and mineral exploration company leases without first negotiating a Cession of these territories vis-à-vis the superior legal requirements of the Royal Proclamation of 1763 and the accompanying common law precedents under English Law.

First Nations’ peoples opposed the reduction of their rights with the new Dominion from the outset. As early as the A.D. 1880s the Nisga’a were protesting the loss of their lands and demanding compensation. The provisional government established by the leader of the North-West Rebellion, Louis Riel, in Manitoba in A.D. 1885 also stands as evidence of Metis opposition to the expansionist ambitions of eastern political and business elites, and represented a direct challenge to settlement in the Red River region. The hanging of Louis Riel, by orders from Sir John A. MacDonald, effectively silenced de facto sovereignty and resistance was significantly diminished for a period that lasted through until the end of the Second World War. It was then that a new climate of human rights idealism and a new United Nations forum for dispensing International Law pronouncements began to penetrate into the moral consciousness of the general public within the Dominion.

With the finding by the Judicial Committee of the Privy Council that the Aboriginal title had only been a “personal and usufructory” right to enjoy the benefit of their lands at the discretion of the Crown from the decision of St. Catherine’s Milling & Lumber Company vs. The Queen we have an example of an erroneous conclusion in law, inconsistent with all historical references under English Law and the Law of Nations. We also have the instrument of bad law that served to instruct the formulation of all Aboriginal policy within the colony until late into the 20th century.

With the evidence presented by the Royal Proclamation of 1763, the common law precedents of Mohegan Indians vs. Connecticut and Cameron vs. Kyte, Article Nine of the Treaty of Ghent of 1814, Section 109 of the British North America Act, 1867, and the conditions expressed with the transfer of title from the Hudson’s Bay Company to the Dominion, it is pretty fanciful to conclude a mere ‘personal and usufructory’ right to use and enjoyment of the land. One is left only to conclude that in this particular case the Judicial Committee of the Privy Council was quite simply wrong in their judgement. The spaciousness of this conceptualization of First Nations’ title was corrected in English Law in A.D. 1897 when the Judicial Committee of the Privy Council ruled in the case of the Attorney General of Canada vs. Attorney General of Ontario (otherwise known as the Indian Annuities Case). Within this decision the Court acknowledged that the Aboriginal claim to land was an “interest” for legal purposes, that this interest was an “independent” interest, and that this “independent” interest was constitutionally protected.

By the close of the nineteenth century, despite significant and devastating encroachments by the colony on the de facto ability of Aboriginal peoples to govern the affairs of their communities, the de jure recognition of Aboriginal sovereignty and land title in English Law and the Law of Nations had not been extinguished by the Parliament of Great Britain and remains in full force and effect. The doctrine of Cession adopted by the British Crown to achieve “surrenders” of land from First Nations’ peoples and the language of “treaties of alliance” used to negotiate Aboriginal cooperation and grants of land to the Crown did not explicitly delegate an incident of sovereignty. The de jure sovereign rights of First Nations’ peoples remained intact under English Law, the Law of Nations and International Law, regardless of its de facto reduction to silence within the domestic legislative instruments of the Dominion of Canada.

Infancy of Relations in the New World - Peace & Friendship, Alliance & Trade - Chapter 5




The transcending motives for voyages to the New World during the sixteenth and seventeenth centuries were not much different for the respective Crowns of Europe. Although the pretense of their missions was to take Christian teachings to the heathen, there remains little question that their piousness was a sham. It was not the Holy Spirit that filled the hearts and minds of monarchs and explorers in the sixteenth century but, rather, a cancerous lust for gold and other valuable resources that could be easily extracted from the land and ferried across the ocean to make monarchs and investors rich. For the Spanish, in particular, the driving ambition was not to conquer and possess new lands but, rather, to find and extract gold. Jack Weatherford has estimated that between 180 to 200 tons, with a contemporary value of $2.8 billion, was ferried from the New World to Europe from the beginning of the sixteenth to the middle of the seventeenth centuries. The treasures of precious metals the likes of gold and silver increased ten-fold in Europe by the beginning of the seventeenth century, expanded Europe into an international market system, and provided the catalyst for the birth of a capitalist world economy.

Following Columbus's 'Arrival' in the New World the Spanish Crown sought to legitimize their claims to territories in the Americas vis-a-vis the other Crowns in Europe (ie: French, English, Dutch and Portuguese) through the support of the Papacy in Rome. Premising their actions with an intention to spread Christian teachings to the Aboriginal inhabitants, King Ferdinand and Queen Isabella convinced the Pope to validate their territorial discoveries through a Papal Bull, the Inter Catera of 1493. This Bull was law within Christendom and was ratified by Spain and Portugal through the Treaty of Tordesillas in 1494. But Bulls and Treaties were not considered as being legally binding on third parties, and "...each nation had to make good its own claim." One such method for doing so under the Law of Nations was the doctrine of Discovery. Since this doctrine proved to be suspect even in its own day, monarchs had to conceive of additional rationalizations to defend the usurpation of territories in the New World. To do so they employed the doctrine of Conquest. The validation of a claim based on Conquest would require the defeat or surrender of a given peoples to the Crown in question as a consequence of warfare or the threat of warfare. Under the Law of Nations a formal declaration of surrender and evidence of occupation would transfer sovereignty from the vanquished to the victors and the acquisition of territories would be legitimized, at least until the next invading army happened along.

Synonymous with the maxim, 'might is right', this doctrine could, in theory, provide validation for the extinguishment of Aboriginal title, if, and only if, it could be established that the Aboriginal peoples in the Americas were 'conquered.' From the research collected for this work it would seem clear that Spanish title to lands in Central and South America could be defended within the Law of Nations during the sixteenth century if the other states of Europe had been willing to acknowledge and accept as a customary rule Spanish territorial acquisitions in New Florida and Peru by the swords and muskets of the Conquistadors. But, while the historical evidence supports the premise of conquest in relationship to battles with the peoples of the Aztec Empire and within the Mississippian cultures routed by Hernando de Soto in the Eastern Woodlands, it is also clear that the other monarchs within Christendom poured scorn on these claims. Even the Papacy discredited the Spanish claims and tried to defend the rights of Aboriginal peoples.

In A.D. 1537 Pope Paul III produced the Bull, Sublimis deus sic dilexit, in which he declared that the Aboriginal peoples of the Americas were not to be treated like "...dumb brutes created for our service...[but] as true men..." and tried to dictate that they not be deprived of their liberty or lawful possession of their property. Pope Urban VIII would try a century later to threaten excommunication for those who deprived Aboriginal peoples of their liberty or property, but the Spanish Crown exerted its influence on the Papacy to ensure that the Bulls did not take affect within the territories they had claimed. The legality and morality of their actions had already been refuted within Christendom and, consequently, within the Law of Nations of their age. When the Reformation witnessed the division of Christendom into Catholic and Protestant denominations by the middle of the century any measure of acceptance for these territorial titles vanished. Following the defeat of the Spanish Armada in 1588 it became more difficult for Spain to make good its claims and parted the waves for England and France to journey the high seas on their own mercantile adventures. The fact that Protestant monarchs, "...could not be expected to acquiesce.." to the claims of Catholic monarchs essentially invalidates the premise of a 'customary rule' accepted by all states in Europe under the Law of Nations. This, in turn, invalidates the doctrine of Conquest as a legitimization for the acquisition of territorial title in the Americas, at least as far as the Spanish Crown is concerned.

As noted previously, the New World comprised a massive region of the globes inhabitable land mass and a multiplicity of societies and cultures across its length and breadth. When European explorers reached its coast-lines at different points during the sixteenth and seventeenth centuries their arrival, and their sphere of initial influence, was somewhat analogous to a mosquito landing on the back of an elephant. Undoubtedly their coming was noticed by the Aboriginal peoples of the age and many stories within the mythology of Aboriginal societies across North America make reference to the strange white beings with hairy faces that had come upon the land. It is pure conjecture on my part, but I suspect that the "moccasin telegraph" spread word-of-mouth accounts about these peoples almost as quickly in the sixteenth century as news about the score of a given hockey or football game can travel across the continent from one coffee house to the next in the twenty-first century. As an example of this communications network, Alan McMillan has noted that when the French explorer, Jacques Cartier sailed into Chaleur Bay on his first voyage to the northern regions of the continent in 1534 his ship was met by the Mi'kmaq peoples who, "...loudly hailed the ship and waved furs on sticks to signal their eagerness to trade - suggesting such relationships had been established for some time."  Clearly, claiming sovereignty over such vast territories and diversity of peoples was grandiose rhetoric intended for strategic posturing in the Old World against competing commercial enterprises and had absolutely no correlation to the reality of power in the New World. In fact, it has been noted that, although Jean-Fracois de La Roque (Roberval) was originally commissioned by Francois I, "...to find and subdue the immensely rich Kingdom of Saguenay...", it has also been acknowledged that the French learned very early in their experiences with Aboriginal peoples in the seventeenth century that they, "...would accept neither European claims to land ownership and sovereignty nor French laws and taxes."

Following the hiatus of exploration between La Roque's unsuccessful mission in 1542 and Samuel de Champlain's ventures into the New World in 1603 the engine for French mercantile initiatives was clearly driven by economic considerations relative to the trade in beaver pelts and other furs and had little to do with claims of territorial title. As Margaret Conrad has noted, the French recognized that for the fur trade to be successful they would require the alliance and assistance of the Aboriginal peoples and that they would be forced by diplomatic considerations to abandon any goals of exercising direct sovereignty over the indigenous population. According to Historian, Thomas B. Costain, "...it was clear from the start that the experiment in colonization would be carried out in the face of bitter opposition from the natives." Consequently, the French were, "...obliged to recognize the original inhabitants as "free and independent people" with title to their ancestral lands", and did so through such instruments as the Treaty of Montreal in A.D. 1700, when they, "...recognized the Iroquois as an independent nation." Indeed, both the French and the British would rely upon alliances with the Aboriginal peoples of the New World in order to repudiate and challenge the claims of territorial title made by the representatives of other Christian Princes. In doing so they not only disavowed the claims of their European contemporaries, but they also were compelled by the realities of power in the Americas to acknowledge and tacitly conform to the sovereignty of the nations of Aboriginal peoples they encountered and interacted with.

Under such conditions it would be farcical to profess a legal entitlement based on either the doctrine of Discovery or Conquest. There were as many as fifty million people in the Americas in A.D. 1500. Although several writers have made reference to a dramatic decline between A.D. 1500-1650 in the Aboriginal population to a mere 10% of their numbers at time of first contact - as a consequence of diseases brought to the New World and intensified warfare brought about by ambitions within both New World and Old World power politics to control the terms of trade and achieve territorial supremacy - it should also be noted that by A.D. 1627 the European population of Canada had only reached 107 people. European explorers and imperial representatives ferried back and forth across the Atlantic for a series of mercantile expeditions throughout the sixteenth and seventeenth centuries but made very limited penetration into the lands that they claimed title over. In point of fact, it was not until A.D. 1778 that Captain James Cook made his way as far as the North West Coast to establish trade with the Nuu-chah-nulth in Nootka Sound; as late as the A.D. 1858 'gold rush' on the Fraser River before Aboriginal peoples in the Interior Plateau would have anything but transient contact with traders and explorers; the middle of the eighteenth century before traders began to expand their efforts through the establishment of forts on the northern Plains; and the late-nineteenth century before the Inuit of the Arctic had anything but fleeting contact with 'pale-face' peoples. It should be noted that in all such encounters the primary European motive was the establishment of trade, and not the conquest of territories. The monarchs did not send invading armies first but, rather, merchant ships, and the companies they commissioned, although possessing grandiose pronouncements of territorial grants could not have and would not have survived in the New World had they approached Aboriginal peoples in any other fashion than with a measure of respect for their independence and for their evident control and sovereignty over the lands on which they lived.

Captain Martin Frobisher made the first foray into the New World on behalf of the English Monarchy in A.D. 1578, but it was not until after the defeat of the Spanish Armada in A.D. 1588 that England was able to increase its participation in the plunder of the North American continent. Even then, it would be three-quarters of the way into the eighteenth century before they could assert any claim as the predominant European Crown in the New World. In the early years of colonization, with the establishment of Jamestown in A.D. 1607 and the Pilgrims arrival at Massachusetts Bay in A.D. 1620, it is a stretch of the imagination to assert that any measure of sovereignty under the Law of Nations was achieved over the new lands by either Discovery or Conquest. As well, though the intolerance practiced on the Puritans in Europe became manifest within the treatment they in turn practiced against the Aboriginal peoples they encountered in North America, there were contemporary voices the likes of Roger Williams in their midst who, in A.D. 1643, "...advocated religious tolerance and Indian land rights." When, in A.D. 1644, the English defeated the Dutch, the Covenant Chain between the Dutch and the Mohawks became a political alliance between the English and the Iroquois and stands as affirmation and recognition of the independence and nationhood of the Iroquois Confederacy. Indeed, both the French and the British believed that the Iroquois Confederacy was powerful enough to topple any ambitions of empire building by either Crown and both paid homage to the balance of power they possessed through the practice of diplomatic negotiations and the presentation of gifts in order to curry their favor and support.

In A.D. 1670 the English King, Charles II, established the "Honourable Company of Adventurers of England Trading in Hudson's Bay" (the Hudson's Bay Company). Although there was a Crown grant of territories in the New World to this company, it must be observed from both the name of the company and from the goals it was established to achieve that there was nothing but grand-standing behind the jurisdictional allocation. As Jack Weatherford has noted, the purpose of this company was, "...to extract something for trade or profit." To assert that the Hudson's Bay Company achieved sovereignty over lands in what was to become British North America by the consequence of this grant would be tantamount to concluding that regional sales territories defined by company directors in the board rooms of  I.B.M. or Federal Express could also achieve a sovereign title over lands. Aside from the fact that in International Law only a state, and not a corporation, can be recognized as possessing the attributes of a sovereign, it is just plain lunacy to suggest that any measure of 'control' or 'rule' over an area of 3,695,000 square miles of territory inhabited by a plethora of distinct and powerful Aboriginal nations was achieved. As late as A.D. 1772, more than a century later, the traders for the Hudson's Bay Company had still not been able to penetrate into the territories on the northwestern Plains controlled by the Blackfoot Confederacy, and it would not be until David Thompson visited with the Peigan in A.D. 1787 that, "...the Hudson's Bay Company gained the favor of the largest of the Blackfoot tribes." Even then, there was no acknowledgement by the Blackfoot of any subordinate relationship relative to the Hudson's Bay Company or the British Crown as well as no capacity for making good on such a claim by either of the latter mentioned parties. Any pompous orations of such claims would undoubtedly have placed the traders within a circle of unrelenting ridicule, if not imminent demise. Domination over the lives of this proud warrior society would not come about until the collapse of the Bison herds, plagues, and the devastation cast by the European practice of 'Spirit Water' for trade payments on hides and pemmican had devastated their numbers to such a degree that it became possible for settlers within the region to take advantage of their weakness. Until at least A.D. 1839 the balance of power was in their hands on the northwestern Plains, and their independence was well acknowledged by the 'Red Coats' and the 'Long Knives', as well as the Cree, the Assiniboine, and the Kutenai.

By the beginning of the eighteenth century France's interests, under the leadership of King Louis the XIV, had shifted back to the Old World. Determined to place his nephew on the throne in Spain, the War of Spanish Succession in A.D. 1702 served to alter the colonial agendas of the European monarchies. Through the Treaty of Utrecht that ended the war in A.D. 1713 the French Crown agreed to throw its colonial claims into the balance for the peace process and conceded within the treaty that the British Crown was to be acknowledged as possessing sovereignty over the Iroquois in the regions previously claimed as New France. This assertion of sovereignty was rejected out-right by the Iroquois and the British Crown had insufficient resources to make good its claim. Far from being able to achieve supreme rule, this ostentatious presumption of sovereignty went unrecognized and was unenforceable in Iroquois country, and the English knew it. As a consequence, they continued to recognize an allied relationship and maintained the customs of diplomacy and gift giving for services rendered as allies against the French. In addition to an unbroken practice of treating the Aboriginal peoples as independent nations of allies, the British Crown also began the process of formal treaty-making with the Maliseet peoples in the Treaty of Portsmouth of A.D. 1713.

With the first of what are referred to as the "Peace and Friendship" treaties, it is important to note the choice of instrument used to negotiate an end to hostilities between settlers and the Aboriginal peoples. A "treaty", as defined in Webster's Dictionary, is "...a formal agreement between two or more states with reference to peace, alliance, commerce, or other international relations"(italics added). While this definition is taken from a dictionary in the twenty-first century, there is little doubt that the terminology was understood in the same context within the eighteenth century. These were not benevolent grants from 'the Great White Father' who, seeking to be generous and good to his 'subjects', decided to show some kindness toward them through a formal domestic legal instrument, as some might like to suggest. Had that been the case the protections put in place by the treaty would have been recorded instead within a Statute of the British Parliament. Rather, it was an international political compromise under conditions of inter-societal conflict and negotiations that the British Crown undertook in order to prevent the complete destruction of the gains that had been made in the New World. Within this treaty, as well as the A.D. 1725 Treaty of Boston signed between the Mi'kmaq peoples and the British, the Crown in England censured British subjects from the molestation and disruption of Aboriginal peoples in their territories. The British required the cooperation of the Maliseet and Mi'kmaq peoples in order to help achieve the mercantile objectives of the fur trade, and the encroachment of European settlers into 'Indian Territory' seriously threatened that economic cooperation, along with the military alliances required to check the competition of imperial initiatives in New France.

As Chief Justice John Marshall noted in the nineteenth century in respect to the words 'nation' and 'treaty', words the likes of 'peace', 'friendship', 'unmolested', and 'undisturbed' have clearly defined meanings within the English language and their adoption into the political dynamics of the early eighteenth century were intended to serve specific diplomatic purposes; they were utilized in negotiations with the Maliseet and Mi'kmaq peoples and incorporated within formal declarations in order to placate pissed-off allies and prevent them from exercising further wrath against the colonies.

The period between A.D. 1700 and at least A.D. 1814 has been termed the period of the "Middle Ground"; when the dependence on the cooperation and assistance of Aboriginal peoples in the fur trade, the alliance of Aboriginal nations against the French and the emerging threat of warfare in the thirteen colonies of the Americas ensured that the indigenous peoples would be treated with formal recognition of their independence and rights to dominium by all of the immigrants from Europe.

In A.D. 1760 the United Province of Canada was established under assumed British sovereignty following the Articles of Capitulation in Montreal. In Section 40 of the Capitulation the French sought to protect the interests of their Aboriginal allies by asserting that they were to be recognized as independent nations, and the British Crown conceded to these terms. When, in A.D. 1763, the English emerged from the Seven Years War (A.D. 1756-1763) as the dominant European Crown in the New World they still had to face the prospect of a challenge to their universal authority over the lives of the immigrants in the Thirteen Colonies of America. Also, they were facing the threat of Pontiac's Rebellion (1763), which was undermining their control over colonial holdings and threatening the entire mercantile enterprise. Again, rather than through some sense of benevolence, the British Crown was compromised by the pragmatics of politics to concede to the demands for independence and dominium that Aboriginal peoples continued to maintain a strong attachment toward, and was obliged to issue the Royal Proclamation of 1763 in order to censure British subjects from interfering with First Nations allies in their own territories.

This legislative instrument has been considered as part of the domestic law of Britain and carries the weight of a Statute in the English Law tradition. As such, it has been dubbed the 'Indian Charter' and is purported to provide domestic law statutory authority for the claim that Aboriginal peoples maintain the right to be left "...unmolested and undisturbed..." in "...Indian Territory"; since the right acknowledged by King George III has never been repealed or extinguished in the 250 plus years since it was 'granted' by the British Crown. Presuming that one accepts the premise that the British Crown had established effective sovereignty over British North America by this point in history, it is through reference to this Proclamation that Aboriginal rights to self-government and self-determination within Canada are to be legally defended under English Law. As the argument runs, the British Crown, and by extension the Canadian Crown, is legally bound by their own legislative instruments and judicial precedents to acknowledge and defend the right of Aboriginal peoples to self-government and self-determination, since the case of Campbell vs. Hall in A.D. 1774 established that, "...capitulations in general were binding upon the King in Council...", and the "aboriginal right was conceded under both the capitulation and the proclamation." Further, since these rights have never been repealed, they are now "...recognized and affirmed..." as a consequence of their inclusion within the "...existing Aboriginal and treaty rights..." that are protected by Section 35.(1) in the Constitution Act, 1981.

I argue that this Proclamation does serve to define the acceptable legal behavior of colonial subjects toward the Aboriginal allies of the Crown vis-à-vis English Law, and does stand in defence of an Aboriginal right to self-government and self-determination within Canada's Constitution. But, or perhaps I should say 'in addition', I would also argue that the Proclamation does not serve as an acknowledgement of unfettered British sovereignty in British North America, or by extension a subordinate legal stature for Aboriginal peoples which would make whatever rights they are able to garner from the Crown dependent upon it's will and pleasure.

It is my view that, in keeping with the customary rules of politics during the late eighteenth century, this royal prerogative was intended to articulate within domestic laws the 'Protectorate' association that the British Crown had established with its First Nations allies. Subsequent to the pronouncements of this Proclamation, the Crown continued to respect and acknowledge through formal international proceedings the allied relationship of First Nations' peoples vis-à-vis the British Crown, and in so doing gave unequivocal credence to their status as 'Protectorate states' under the Law of Nations. In A.D. 1832 the U.S. Supreme Court concluded that, "...the Indian nations of North America had been protectorates of the British Crown:...", in the case of Worcester vs. Georgia, and Justice C.J. Marshall made reference to the, "...settled doctrine of the law of nations...that a weaker power does not surrender its independence, its right to self-government, by associating with a stronger, and taking its protection." As Maureen Davies has observed, the relationship of "protection" is, "...an ancient principle of the law of nations." She goes on to affirm that "...a sovereign state may exercise its power to create for itself a voluntary state of dependence...," and that, "...[t]he effect of limited association would be to unite two states under one Crown but not under one law."

In A.D. 1928 the United Nations ruled in the Island of Palmas case that, "sovereignty over territory means "the right to exercise therein, to the exclusion of any other state, the functions of a state," but elaborated on this principle by noting that said sovereignty, "...is not necessarily unlimited. Other states may, by treaty or local custom, acquire minor rights over the territory,...". From this brief critique of the status of sovereign title within British North America it is argued that the Crown's sovereignty in these territories was, and continues to be, fettered by the sovereign interest that First Nations' societies maintain in the lands on which they have lived since time immemorial, and that the creation of their 'voluntary state of dependence' through treaties signed during the nineteenth century does not, in any way, preclude them from re-asserting their independence and internationally recognized right to self-government and self-determination vis-à-vis the Canadian Crown under the constructs of the Law of Nations or International Law.